Criminal defense lawyers for allegations of corruption in the healthcare sector – criminal defense in cases of bribery and corruption

Criminal risks for doctors and other healthcare professionals

Is a doctor committing a crime by accepting gifts or being invited to a conference by a pharmaceutical company? Are fees for product recommendations and bonuses for pharmaceutical representatives legally permissible? Such questions often mark the beginning of investigations into corruption in the healthcare sector. 

Since the introduction of Sections 299a and 299b of the German Criminal Code (StGB) in 2016, bribery and corruption in the healthcare sector have been independently punishable offenses. Previously, the Federal Court of Justice had ruled that self-employed physicians under contract with statutory health insurance funds were neither public officials nor agents of the statutory health insurance funds – with the consequence that neither the acceptance and granting of advantages (Sections 331 et seq. StGB) nor bribery and corruption in commercial transactions (Section 299 StGB) applied. With Sections 299a and 299b StGB, the legislature closed this gap in criminal liability by establishing an independent corruption offense within medical criminal law. Furthermore, employees of public employers (public hospitals) may still be liable for bribery or acceptance of advantages under Sections 331 et seq. StGB if they accept such advantages. 

For those affected, it's often not just about a potential fine or imprisonment. Investigations into bribery in the healthcare sector can regularly lead to professional, social security, and tax-related consequences. The revocation of a medical license or the withdrawal of accreditation to bill health insurance companies can jeopardize their professional livelihood.

As a law firm specializing in medical criminal law, our lawyers defend clients nationwide in cases of corruption within the healthcare sector. We always consider the interplay between criminal law, professional law, and administrative law.

Overview – Corruption in the healthcare sector as part of medical criminal law

Sections 299a and 299b of the German Criminal Code (StGB) follow the structure of classic corruption offenses. In principle, anyone can offer or grant an advantage (Section 299b StGB). However, the group of perpetrators on the recipient side is limited to members of certain healthcare professions (Section 299a StGB) – namely, those professions for which state-regulated training is required for the practice or use of the professional title. 

Specifically included are:

• Doctors
• Dentists
• Psychotherapists
• Pharmacists 
• other members of state-regulated healthcare professions. 

The purpose of these regulations is to protect fair competition in the healthcare sector and to safeguard patients' trust in the integrity of medical decisions. The legislator aimed to prevent economic incentives from influencing medical decisions. Medical necessity should be the decisive factor – not economic gain. This standard is therefore closely linked to the professional prohibition against referring patients for payment, the regulations governing social security billing, and principles of competition law.

When does a criminal offense under §§ 299a, 299b of the German Criminal Code (StGB) occur?

Bribery (§ 299a of the German Criminal Code) in the healthcare sector is a criminal offense committed by anyone who, as a member of certain healthcare professions and in connection with the practice of that profession, demands, solicits, or accepts an advantage for themselves or a third party – in return for unfair preferential treatment in competition in certain processes specified by law within the healthcare sector. Conversely, § 299b of the German Criminal Code covers the active bribery of members of healthcare professions, i.e., offering, promising, or granting an advantage under the aforementioned conditions. 

An advantage is any improvement in one's economic, legal, or personal situation to which there is no legal entitlement – whether material or immaterial. Examples of advantages include:

• Monetary gifts, luxury goods and other presents
• Fees for product recommendations
• Discounts
• Coverage of costs for training events and company celebrations
• Conclusion of a contract, e.g. a cooperation agreement
• Enhancing scientific reputation
• Obtaining an award

The central concept is the so-called unlawful agreement. The advantage must be consideration for unfair preferential treatment in competition. The law explicitly lists the following situations in which preferential treatment can occur:

• when prescribing medicines, remedies or aids or medical devices
• when acquiring such products for immediate use
• during the supply of patients or examination material.

An explicit agreement is not necessary – the unlawful agreement can also arise from the circumstances of the individual case.

A competitive situation between at least two providers is a prerequisite. The preferential treatment must be based on extraneous considerations. If there is an objective reason for the decision, this strongly suggests that the preferential treatment is not unfair. Furthermore, conduct permissible under professional and social law – for example, according to the German Social Code, Book V (SGB V), the German Medicines Act (AMG), the Model Professional Code of Conduct for Physicians (MBO-Ä) and Dentists (MBO-Z), or the German Act on Advertising of Therapeutic Products (Heilmittelwerbegesetz) – is generally not punishable. However, violations of these regulations can indicate unfair preferential treatment.

The offense requires intent. The accused must know that the benefit is granted in return for unfair preferential treatment. 

What are typical accompanying offenses of § 299a, §299b of the German Criminal Code?

Proceedings for corruption in the healthcare sector are often not limited to allegations of bribery and corruption in the healthcare industry. Typical accompanying offenses include:

• Billing fraud (§ 263 StGB)
• so-called breach of trust by contracted physicians (§ 266 StGB)
• Tax evasion (§ 370 AO)
• Violations of the German Act on Advertising of Therapeutic Products (HWG), the Act Against Unfair Competition (UWG) and antitrust law 

Billing fraud

Investigations regularly concern the billing of medical services to statutory or private health insurers. Billing fraud This is particularly likely when services have not been provided in accordance with the applicable billing regulations. The relevant legal provisions are those of the German Social Code, Book V (SGB V), the Uniform Assessment Standard (EBM), the German Fee Schedule for Physicians (GOÄ), and regulations governing contracted physicians. In the context of Sections 299a and 299b of the German Criminal Code (StGB), billing fraud can occur, for example, in cases of agreements to provide medically unnecessary services at the expense of statutory health insurance. Medical documentation, billing logic, and professional regulations are closely intertwined in these procedures. 

infidelity

Allegations of breach of trust can be brought against, for example, managing directors of medical care centers (MVZs), hospital directors, or practice owners if they are accused of misappropriating company assets or causing financial harm to the sponsoring companies. Contract physicians also have a duty to manage assets vis-à-vis the health insurance funds, which can be violated, for instance, by the inappropriate prescription of medications. 

tax evasion

Payments that constitute a criminal offense may not be deducted as business expenses for tax purposes. Anyone who makes such payments is liable to prosecution. Concealing a gift to the tax authorities regularly constitutes tax evasion. On the recipient's side, gifts received can represent taxable income – this is also investigated by the authorities.

Advertising law for medicinal products and antitrust law

Advertising law for medicinal products is affected because it – like Sections 299a and 299b of the German Criminal Code (StGB) – penalizes unfair practices in the healthcare sector. Antitrust violations are generally administrative offenses and typically arise when anti-competitive discounts are granted. Due to the potential amount of fines, they are particularly relevant in practice.

Is accepting a gift a criminal offense?

Not every acceptance of a gift constitutes bribery in the healthcare sector. For criminal liability under Section 299a of the German Criminal Code (StGB), the decisive factor is whether there is a connection to unfair preferential treatment in competition. Furthermore, payments made in return for past preferential treatment (rewards) are only covered by Sections 299a and 299b of the StGB if they are based on a prior unlawful agreement. Small tokens of appreciation may, under certain circumstances, be considered socially acceptable. However, the threshold for this is narrow and must always be examined on a case-by-case basis. 

Employees of public sector employers may also be liable to prosecution for bribery or acceptance of advantages under Sections 331 et seq. of the German Criminal Code (StGB) if they accept gifts. 

Regardless of criminal liability, the specific professional regulations must always be taken into account.

How is corruption in the healthcare sector uncovered?

Investigations into bribery and/or corruption in the healthcare sector can originate from tax audits (external audits) conducted by the tax authorities. These can be supplemented by criminal complaints, whistleblower reports, and suspicious activity reports from medical associations and health insurance funds. Internal compliance audits can also raise initial suspicion.

Typical measures include searches of medical practices or business premises, securing patient and billing records, and evaluating cooperation agreements and communications. Due to documentation requirements in the healthcare sector, the evidence is often extensive. 

It is not uncommon for investigating authorities to simultaneously examine suspected billing fraud or tax violations. The proceedings can therefore expand considerably.

Important: If you learn of a search or investigation, you should seek legal advice immediately – before making any statements to investigating authorities.

What are the penalties for bribery and corruption in the healthcare sector?

The basic offense under Sections 299a and 299b of the German Criminal Code (StGB) provides for a fine or imprisonment of up to three years. In particularly serious cases (Section 300 StGB) – for example, in cases of commercial activity, substantial gains, or commission by a criminal organization – a prison sentence of three months to five years is possible.

In addition to the actual punishment, the following secondary consequences, among others, may be considered:

• Confiscation of proceeds of crime (§ 73 ff. StGB)
• Professional disqualification (§ 70 StGB) 
• Disciplinary measures  
• Withdrawal of health insurance accreditation for contracted physicians

The side effects can have a more serious impact on one's professional existence than the actual punishment – therefore, early legal representation is crucial.

Does one automatically lose their medical license upon conviction?

A medical license can be revoked, but it is not automatic. The responsible authority examines whether the individual is unworthy or unreliable to practice medicine. The decision must be made in light of the freedom to choose one's profession (Article 12 of the Basic Law) and the principle of proportionality. 

Criminal proceedings and administrative measures are formally separate processes – however, they often influence each other. A criminal conviction can significantly guide the authority's decision. Conversely, a successful criminal conviction can also have a significant impact on the administrative decision. Criminal defense can also avert or mitigate professional consequences.

Defense against corruption charges in the healthcare sector – Galen Lawyers

The lawyers at Galen Rechtsanwälte advise and defend clients nationwide in cases involving white-collar and medical criminal law. Our focus is on an early, structured, and discreet approach. We clarify the initial situation, request access to the case file, and analyze the evidence and the prosecution's investigative strategies.

The crucial decisions are made as early as the investigation phase. For example, we examine,

• whether a criminally relevant unlawful agreement can be proven
• whether the cooperation in question was permissible under professional and social law
• whether the required intent can be proven in the specific individual case
• whether investigative measures are legally contestable

Particularly in medical criminal law, the distinction between permissible cooperation and criminal interference is often complex. The same applies to the distinction between an activity undertaken in the course of one's professional duties and a purely commercial decision. Galen Attorneys at Law therefore considers professional, contractual, and tax-related risks from the outset. When necessary, we collaborate closely with specialized colleagues from other legal fields.

Are you having your premises searched, or have you otherwise learned of an investigation against you? Please contact us to arrange an appointment.